Bankruptcy Amendment Regulations 2006 (No. 2)

(137 of 2006)

22 June 2006

Bankruptcy Act 1966

1 Name of Regulations

These Regulations are theBankruptcy Amendment Regulations 2006 (No. 2).

2 Commencement

These Regulations commence on 1 July 2006.

3 Amendment of Bankruptcy Regulations 1996

Schedule 1 amends theBankruptcy Regulations 1996.

Schedule 1 Amendments

[1] Subregulation 1.03 (1), before definition of Act

insert

2006 Fees Determination means theBankruptcy (Fees and Remuneration) Determination 2006 made under subsection 316 (1) of the Act.

[2] Regulation 4.02A, at the foot

insert

Note If paragraph (b) applies to a bankruptcy notice, a fee is payable under the 2006 Fees Determination.

[3] Regulation 4.17, note

omit

a fee is payable in accordance with item 6 of Schedule 9.

insert

a fee is payable under the 2006 Fees Determination.

[4] Regulation 13.06

substitute

13.06 Inspection of the Index

(1) A person may, by application in writing, ask an Official Receiver to inspect material in the Index and give an extract of material specified in the application.

(2) On receipt of an application, the Official Receiver:

(a) if the fee determined under the 2006 Fees Determination is paid - must inspect the Index and, within 14 days of receiving the application:

(i) give the requested extract to the applicant; or

(ii) tell the applicant, in writing, that the requested extract is not entered in the Index; or

(b) may give the applicant a list of Index search agents who may be able to inspect material entered in the Index for the applicant.

(3) A person who has been granted access to the Index by the Inspector-General may, after paying the fee determined under the 2006 Fees Determination:

(a) inspect material entered in the Index; or

(b) obtain an extract of material entered in the Index.

Example for paragraph (b)

Making notes of information shown on a computer screen, or obtaining a print-out of information stored electronically.

(4) However, prior payment is not required under subregulation (3) if the person has an alternative arrangement with the Inspector-General about the method of payment.

Example

An arrangement for payment by bulk billing.

(5) The Inspector-General may specify conditions that apply to:

(a) the use of information entered in the Index; and

(b) the use of an extract of material entered in the Index.

Note Under regulation 13.09, the Inspector-General has control of access to the Index.

[5] Regulations 13.11 and 15A.06

omit

[6] Part 16, Division 2, heading

substitute

Division 2 Matters relevant to fees

Note Divisions 2 and 3 of Part 16 of the Regulations formerly provided for the fees in relation to the Act (including remuneration of the Official Trustee). As a result of the amendment of the Act by the Bankruptcy Legislation Amendment (Fees and Charges) Act 2006, the remuneration of the Official Trustee and fees in relation to the Act are now set out in the 2006 Fees Determination.

[7] Part 16, Subdivisions 2.1, 2.2 and 2.3

substitute

16.06 Payment of fees

(1) If a fee is payable in respect of:

(a) the making of a request or an application to an Official Receiver; or

(b) the presentation or lodgment of a document with an Official Receiver;

the request, application or document must not be dealt with unless the fee has been paid.

(2) If a fee is payable in respect of the doing of a matter or thing by an Official Receiver, the matter or thing must not be done unless the fee has been paid.

(3) However, prior payment of a fee is not required under subregulation (1) or (2) if the person has an alternative arrangement with the Inspector-General about the method of payment.

Example

An arrangement under which fees payable by aregistered trustee are paid monthly in arrears.

16.07 Official Trustee’s entitlement to interim remuneration

(1) The Official Trustee’s entitlement to remuneration under the 2006 Fees Determination arises when the Official Trustee:

(a) performs work or first acts in accordance with clause 3.03, 3.04, 3.07 or 3.08 of the 2006 Fees Determination; or

(b) is appointed as described in clause 3.06 of the 2006 Fees Determination; or

(d) performs work as described in subclause 3.09 (2) or clause 3.10 of the 2006 Fees Determination.

(2) For paragraph (1) (a), (b) or (d), remuneration is payable to the Official Trustee in respect of an amount received by the Official Trustee:

(a) when the amount is received; and

(b) at the rate applicable when the amount is received.

(3) For paragraph (1) (c), remuneration is payable to the Official Trustee:

(a) from time to time as the funds are realised; and

(b) at the rate applicable when the funds are realised.

16.08 Reimbursement of Official Trustee for expenses

(1) An amount equal to the amount of expenses incurred by the Official Trustee, in performing work of a kind mentioned in clause 3.03, 3.04, 3.08 or 3.09 of the 2006 Fees Determination in relation to an estate or debtor, is payable to the Official Trustee:

(a) for work under clause 3.03, 3.08 or 3.09 - out of the estate; or

(b) for work under clause 3.04 - out of the composition or scheme of arrangement.

(2) In this regulation:

amount realised has the meaning given by clause 3.01 of the 2006 Fees Determination.

16.09 Fees - notes and transcript of evidence

For paragraph 81 (17) (b) of the Act, the prescribed fee is $20.

[8] Part 16, Subdivision 2.4, heading

omit

[9] Regulation 16.13A

renumber as regulation 16.11

[10] Subregulation 16.13A (5)

substitute

(5) In this regulation:

fee means a fee payable under:

(a) regulation 16.09; or

(b) item 1, 2, 3, 4, 9, 11, 12 or 13 of the table following subclause 2.01 (1) of the 2006 Fees Determination; or

(c) subclause 2.01 (2) for making copies of, or taking extracts from, a document mentioned in column 3 of item 1, 2, 3, 4, 11 or 13 of the table following subclause 2.01 (1) of the 2006 Fees Determination; or

(d) clause 2.02, 2.07 or 2.08 of the 2006 Fees Determination.

[11] Regulation 16.13B, except the note

substitute

16.12 Review by AAT of decision of Inspector-General

Application may be made to the Administrative Appeals Tribunal for review of a decision of the Inspector-General under subregulation 16.11 (1) to refuse to waive or remit the whole or part of a fee that became payable under a provision or item mentioned in the definition of fee in regulation 16.11.

[12] Part 16, Division 3

omit

[13] Schedule 2, item 11A

substitute

11A After subsection 64ZC (5)

insert

(5A) An instrument appointing a proxy must include:

(a) a statement disclosing whether or not the creditor has received, or will receive, a financial incentive:

(i) to appoint the proxy; or

(ii) to direct the proxy as to the manner in which the proxy is to vote on a particular matter or matters that may arise, or on a particular motion or motions that may be proposed, at a meeting to which the proxy relates; and

(b) if the proxy or creditor has received, or will receive, a financial incentive in relation to a matter mentioned in paragraph (a) - a statement specifying the amount of financial incentive paid or to be paid and the name of the person who paid, or is to pay, the financial incentive.

[14] Schedule 3, clause 1

omit

under an Act, and fees payable under regulation 16.14

insert

under the Bankruptcy (Estate Charges) Act 1997

[15] Schedule 3, clause 1A

substitute

1A. If the Official Trustee transfers the administration of the bankruptcy to a registered trustee:

(a) the remuneration set out in Division 3.2 of the 2006 Fees Determination that is payable to the Official Trustee; and

(b) the reimbursement set out in regulation 16.08 that is payable to the Official Trustee.

[16] Schedule 6, Part 2, item 15

substitute

15 After subsection 64ZC (5)

insert

(5A) An instrument appointing a proxy must include:

(a) a statement disclosing whether or not the creditor has received, or will receive, a financial incentive:

(i) to appoint the proxy; or

[17] Schedule 9

omit